Thursday, December 20, 2012

Can China’s Legal Reform Survive Without Judicial Independence?

Experts at a conference on legal reform earlier this month. Clockwise from top left: Hu Yunteng, Supreme People's Court Research Office; Xie Pengcheng, Supreme People's Procuratorate Institute of Procuratorial Theory; Tian Wenchang, All-China Lawyers’ Association; former lawyer Li Zhuang; lawyer Mao Lixin; Xu Xin, Beijing Institute of Technology Law School.
Photo credits: Sina

Since last month’s installation of Xi Jinping and Li Keqiang at the head of the Chinese Communist Party, there has been much speculation about whether China is about to embark on a new round of reforms and, if so, whether it might alter the political system. In the near term, the odds of political reform are not high, but gradual changes to the legal system are more likely. The most immediate changes will probably result from revisions to the criminal and civil procedure codes that are set to take effect on January 1, 2013.

If recent history is any guide, it is very likely that any substantial reforms to China’s legal system (for example, changes in the system of reeducation through labor) will have to wait until 2014—after Communist Party leaders approve the new legal reform agenda expected to be drawn up by the Central Politico-Legal Commission and submitted for approval toward the end of next year.

Legal-system (or judicial) reform was the subject of a recent conference in Beijing, according to a report published in The Mirror (a Beijing evening paper with a focus on legal affairs). Although the article’s headline focuses on the “revolutionary” system of guiding cases, many conference participants quoted in the article express a degree of impatience with the limited nature of legal reform thus far, and a conviction that establishing a system of judicial independence is essential to the fair and authoritative administration of justice. Pointing to corruption in Russia’s Western-styled judicial system, however, others note that China’s socio-economic realities call into question whether judicial independence is currently feasible.

One is left with the sense that China faces a dilemma that is difficult to resolve: an urgent need to improve the capacity and quality of its legal system in an environment with political, economic, and social factors that restrict the speed and scope of change. Some have even gone so far as to identify this problem as a trap that can only be escaped by instituting political reform—the very thing legal reform is intended to forestall.

Such pessimism is of course inappropriate for the pages of a Chinese newspaper, which may explain why the initial focus is on concrete systemic reforms that have the potential for genuine improvement and why the piece ends with a comment—very likely stripped of its larger context—by former lawyer Li Zhuang, saying that the “spring [of Chinese judicial reform] has truly arrived.” Expectations are high, which means there could be repercussions if this new dawn doesn’t materialize soon.

Building a Guiding Precedents System with Chinese Characteristics

Wang Hong, The Mirror
December 7, 2012

Supreme People’s Court (SPC) judge discusses judicial reform, speaks of plans to set up independent procedure to ensure sentencing precision; citizens can recommend outstanding precedents to courts

The [political] report of the 18th Party Congress mentioned ruling the country in accordance with the law and delivered a new message about “using legal-system thinking to resolve social problems,” all of which has given great encouragement to all segments of society. Some say that the third wave of Chinese reform has already begun, with judicial reform as an important component.

Recently, the Public Policy Research Center at China University of Political Science and Law held a conference on the subject of “The Characteristics of Chinese Judicial Reform,” attended by many authoritative experts, scholars, and lawyers in related fields. Everyone is hoping for the springtime of judicial reform to arrive.

Keyword: Institutional Reform

For a long time China has not given enough attention to sentencing, and in a past era when consciousness about human-rights protection was not strong, it did not matter much if some were punished more heavily and others more lightly.

Reform of sentencing standards began two years ago to address the problems of over-broad sentencing ranges and judges with too much discretion.

Setting up an Independent Sentencing Process

According to Hu Yunteng, director of the SPC Research Office, for a long time in China the sentencing and conviction processes were not separate, not enough attention was paid to sentencing, and there were instances of unequal sentencing.

In a past era in which consciousness about human-rights protection was not strong, it did not matter much if some were punished more heavily and others more lightly. These days, following the increase in human-rights consciousness, freedom is considered increasingly precious and a sentence that is excessive or insufficient by even one day has an impact on the fair administration of justice.

Starting two years ago, China began studying reform of sentencing standards with an eye towards building a relatively independent sentencing process that would, to a degree, separate sentencing from criminal adjudication and allow the prosecution and defense to debate not only the issue of guilt but also the issue of sentencing.

One important result of this reform has been to give finer gradation to sentencing ranges and refine the circumstances under the criminal law in which heavier punishment, more lenient punishment, mitigated punishment, and exemption from punishment [may be imposed], all in an effort to overcome the problems of relatively over-broad sentencing ranges and judges with too much discretion.

Let Outstanding Precedents “Speak”

Director Hu Yunteng says that, in the past, we were always very careful about the way we used [earlier] cases lest it turn into a Western precedent system. In fact, courts nationwide adjudicate millions of cases annually, an extraordinarily valuable judicial resource that encapsulates the collective wisdom of judges, lawyers, prosecutors, and litigants.

After a long period of study, the SPC decided to set up a system of guiding cases with Chinese characteristics, which was formally established in 2010. The SPC has already issued three sets of guiding cases and will soon issue the fourth set.

This Chinese-style system of guiding cases is different from those found in the West. In the West, any case [in which the verdict] has been announced automatically becomes a precedent, but guiding cases in China are all carefully selected by the SPC. The selection of cases involves an extremely strict recommendation process.

A court at any level that believes a case it has adjudicated can serve as a guiding case may recommend it to the adjudication committee of the court at the next-higher level. Cases must move up the recommendation ladder by passing through the adjudication committees of courts at each level.

Citizens who find that a particular case may serve as a guiding case may recommend it to the adjudication committee of the court that adjudicated the case in final instance.

Furthermore, guiding cases must be re-written and the key points of the decision must be approved by the SPC adjudication committee. An individual case may have many highlights, but the ultimate number of confirmed guidance points is usually between one and three, [ensuring that] the scope of guidance is not unlimited or random. Allowing each court, scholar, or lawyer to give [their opinions about a case] in an unstructured way might prevent the case from fulfilling its guiding function.

Courts should consult guiding cases when the case they are trying is similar, but “similar” refers to the essential similarity of the legal issues being contested in the case and not similarity in terms of subject, amount, or the plaintiff or defendant. If a defense lawyer recommends a certain case be consulted, the judge should respond. If a judge ought to consult a guiding case but fails do so without explaining the reason, that case could be remanded for retrial or the verdict changed.

Keyword: Judicial Openness

Experts and scholars all believe that after the 18th Party Congress the next steps in judicial reform will revolve around raising the level of trust in the administration of justice. One of the key links in this is to increase the openness of the judicial system. The current system of judicial openness merely rests on “open hearings,” and there is not enough openness in some of the other aspects [of the judicial process].

Let the Public Participate in Judicial Reform

Director Hu Yunteng observed that many countries worldwide are carrying out judicial reforms, including Japan, Vietnam, and many developed countries. Judicial reform in China is [part of] the development and perfection of a socialist system with Chinese characteristics and must resolve the many problems that currently affect social justice.

The process of China’s judicial reform is not a closed-door process but rather one in which the public should participate and one that should absorb opinions from all sectors of society. The effectiveness of reform should be judged by the public. The goal of China’s judicial reforms is the establishment of a judicial system that is fair, highly efficient, and authoritative.

Mao Lixin, a law Ph.D. and lawyer with the Beijing Shangquan Law Firm, believes that the essence and basic function of the administration of justice is to resolve conflicts, something that requires fairness while at the same time emphasizing efficiency. “Fairness and efficiency” are two major themes in the administration of justice.

However, China currently has a low degree of judicial efficiency. There are 210,000 judges in China, ranking number one worldwide. Its ratio of 19.7 judges for every 100,000 people is higher than in the United States, but its judicial output is actually very low. According to statistics, last year the average number of cases handled per judge was only 57.

In the United States, a judge handles at least 1,000 to 2,000 cases per year; in South Korea the average judge handles more than 700 cases. But in China, many simple cases remain undecided even after several years.

Keyword: Judicial Independence

Many experts and scholars believe that the biggest problem facing China’s current administration of justice is insufficient trust in the judicial system. Abusing power to control the law and interference in the administration of justice are very apparent in some locations, and the key to solving this problem rests on the need to ensure that judicial bodies exercise their judicial power independently.

Stop Power from Kidnapping Justice

Professor Xu Xin of the Beijing Institute of Technology School of Law says that in the past several years the great majority of judicial reforms involved minor revisions and fixes without touching the core of the legal system, and that some of these revisions were even expedient. For example, the system of guiding cases is a revolutionary reform, but it is very difficult to implement. He hopes that the SPC will set up a precedent database and make all precedents public so that everyone may supervise, consult, and compare.

As a next step, China must reaffirm judicial independence, because that is a bottom-line issue. If no one dares speak of judicial independence more than 30 years since opening and reform, then there is no point in discussing judicial reform. Judicial independence is the most fundamental condition for realizing fairness in the administration of justice, without any distinction between East and West. Socialist judicial independence can surpass capitalist judicial independence.

Lawyer Tian Wenchang observes that in many cases judges and courts face control, interference, and even kidnapping [in a figurative sense] at the hands of all sorts of power, a situation that must be eliminated. If [the problem of] judicial independence is not resolved, judicial reform is just empty rhetoric.

Independence of Judicial Officers is Prerequisite

Xie Pengcheng, deputy director of the Institute of Procuratorial Theory at the Supreme People’s Procuratorate, noted that the [political] reports of the 13th through 18th party congresses all contained similar language about “ensuring that judicial bodies exercise judicial power independently and fairly in accordance with the law.” This shows above all that the problem of guaranteeing that judicial bodies exercise judicial power independently and fairly in accordance with the law requires further attention.

The basic goal for future judicial reform is: guaranteeing judicial independence. To this day, there is no country that has fair and authoritative administration of justice without judicial independence.

Where is the fulcrum for future judicial reform in China? It is the establishment and protection of independence for judicial officers.

When relevant international covenants mention judicial independence, they are firstly referring to the independence of judicial officers. However, judicial independence in China means the independence of courts and procuratorates, without recognition of independent judges and procurators. This is the basic reason China cannot truly realize judicial independence.

Establish a High-Quality Corps of Judges

In response to the question of judicial independence, Hu Yunteng says frankly that judicial independence and judicial democratization must conform to our current social realities.

Russia is a classic example of a judicial system transplanted from Western countries: constitutional court, separation of powers, and judicial independence. But fewer than one third of Russians are satisfied with their judicial system, particularly [because of] judicial corruption.

If overall social conditions have not been met and judicial personnel have not achieved [a certain level of] quality, giving judges power will result in serious consequences.

There are currently a number of problems in which the SPC can intervene, and we have some institutions that promote judicial fairness. The fact that many people do not obey the judicial system at present is not because they do not take judges seriously; it is because the law itself has no authority.

Keyword: Lawyer Participation

In the “Li Zhuang incident,” the defendant made accusations against his lawyer in order to save his own life. This fundamentally subverts the foundations of the institution of lawyers.

No Judicial Reform Without Lawyers’ Participation

Tian Wenchang, chair of the All-China Lawyers’ Association Criminal Law Profession Committee, believes that judicial reform cannot occur without the participation of lawyers. In the “Li Zhuang incident,” the defendant made accusations against his lawyer in order to save his own life. This fundamentally subverts the foundations of the institution of lawyers.

There are two very basic foundations to the institution of lawyers: the first is attorney-client privilege and the second is the litigant’s “principle of lawyer protection.”

Several years ago, when the Lawyers Law was being enacted, there were many years of debate about attorney-client privilege. At the beginning, the majority view was that lawyers should be responsible to the law rather than to their clients and that lawyers should reveal and report illegal criminal behavior by their clients when they discover it.

After several years of hard work, attorney-client privilege was finally written into the Lawyers Law. In other countries, lawyers, doctors, and priests are all statutorily exempted from the obligation to give evidence.

But unfortunately the “principle of lawyer protection” has never been established. If a defendant can report on a lawyer in exchange for lighter treatment, what lawyer would dare tell the truth?


“Current Well-Known Non-Lawyer” Li Zhuang: “Spring is Here for the Judicial System”

The afternoon discussion on December 1 was the first open-door academic conference that Li Zhuang attended since his release from prison. The discussion chair’s introduction of him was clever: former non-well-known lawyer, current well-known non-lawyer.

As guest discussant, he stood and spoke last for about 15 minutes. Li Zhuang said that he read the Criminal Procedure Law many times while in prison and [observed] many loopholes therein.

He believes that the bottleneck in judicial reform lies in the lack of independence for judicial officers. If people are not independent, independence will be difficult to achieve even with more funding. And then there are the huge differences in sentencing, in which two cases with nearly the same circumstances result in very different judgments. This reveals the arbitrariness in the administration of justice.

Li Zhuang says that China has discussed judicial reform for more than 20 years, but he has only heard the footsteps on the staircase without seeing anyone come down the stairs. This time, however, spring has truly arrived for the administration of justice in China!